68 F.

3d 455

NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished

opinions may be cited only in related cases.
Maurice D. YOUNG, Plaintiff, Appellant,
v.
KNOX COUNTY DEPUTY, et al., Defendants, Appellees.
No. 95-1064.

United States Court of Appeals, First Circuit.

Oct. 17, 1995.

Maurice D. Young on brief pro se.

William R. Fisher and Monaghan, Leahy, Hochadel & Libby on brief for
appellees.
Before CYR, BOUDIN and LYNCH, Circuit Judges.
PER CURIAM.

Pro se plaintiff Maurice Young appeals a district court judgment that dismissed
his complaint as frivolous within the meaning of 28 U.S.C. Sec. 1915(d). We
have thoroughly reviewed the record and the parties' briefs on appeal. We are
persuaded that the district court's judgment was correct. The plaintiff's amended
complaint purported to state claims under 42 U.S.C. Sec. 1983 for violations of
the Fifth and Fourteenth Amendments' due process requirement and the Fourth
Amendment right to be free from "unreasonable seizures." These claims were
based on the alleged actions of defendant Hansen, the deputy sheriff who
arrested plaintiff and allegedly committed perjury while testifying against the
plaintiff at his state criminal trial.

Insofar as plaintiff seeks to recover for Hansen's alleged perjury, his claim is
barred by Briscoe v. LaHue, 460 U.S. 325 (1983)(holding all witnesses are
absolutely immune from civil suit under Sec. 1983, including those who give
perjured testimony). Insofar as the complaint seeks damages for violation of
plaintiff's Fifth and Fourteenth Amendment rights to procedural due process,

the claim is barred because the plaintiff has adequate remedies at state law. "
[A] procedural due process claim may not be redressed under section 1983
where an adequate state remedy exists." Reid v. New Hampshire, 56 F.3d 332,
341 (1st Cir.1995). As Maine recognizes the common law torts of false arrest
and malicious prosecution, see, e.g., Nadeau v. State, 395 A.2d 107, 116
(Me.1978); Qualey v. Town of Wilton, 540 A.2d 479 (Me.1988), plaintiff has
adequate post-deprivation remedies and may not recover for the alleged
violation of procedural due process under 42 U.S.C. Sec. 1983. See Reid, 56
F.3d at 341. To the extent that plaintiff alleges violations of substantive due
process, Albright v. Oliver, 114 S.Ct. 807 (1994), bars his claim.
3

Plaintiff's claim for the alleged violation of the Fourth Amendment's

prohibition against unreasonable seizures is barred as a matter of law for
different reasons. The plaintiff alleged that defendant Hansen arrested him
without probable cause for operating under the influence (OUI) and operating
after his license had been revoked (OAR). Plaintiff has submitted an arrest
report which indicates that Hansen arrested him on the foregoing charges and
for illegal attachment of license plates. The plaintiff claims that after a jury
deadlocked at his criminal trial on the OUI and OAR charges, the state reduced
these charges to illegally attaching license plates and allowing his motor vehicle
to be driven (presumably, with the illegal plates). The plaintiff does not contend
that probable cause was lacking for these latter charges. "Probable cause need
only exist as to any offense that could be charged under the circumstances."
Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3rd Cir.1994). See also Barry
v. Fowler, 902 F.2d 770, 773 n. 5 (9th Cir.1990); Edwards v. City of
Philadelphia, 860 F.2d 568, 576 (3rd Cir.1988)(similar). Where plaintiff does
not contend that probable cause was lacking for his arrest for illegal attachment
of license plates, he cannot recover for an unreasonable seizure, even if
probable cause was lacking on the OUI and OAR charges. Accordingly, as
plaintiff's federal claims lack an arguable basis in law, they were properly
dismissed as frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989).

There was no separate discussion of the state law claims by the district court.
As plaintiff has failed to allege claims that would support federal jurisdiction,
his state law claims were also subject to dismissal for lack of jurisdiction. See
United Mine Workers v. Gibbs, 383 U.S. 715, 726-27 (1966). However, these
claims should have been dismissed without prejudice. See Figueroa Ruiz v.
Alegria, 896 F.2d 645, 650 (1st Cir.1990). Accordingly, the judgment of the
district court is affirmed insofar as it dismisses plaintiff's federal claims (i.e.,
counts 1-4 of plaintiff's amended complaint) as frivolous. We vacate the
dismissal of plaintiff's state law claims (i.e., counts 5-13 of the amended
complaint) and remand with instructions that these claims be dismissed without

prejudice for lack of federal jurisdiction.

5

It is so ordered.